Citation Nr: 1340788
Decision Date: 12/11/13 Archive Date: 12/20/13
DOCKET NO. 12-20 863 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona
THE ISSUES
1. Entitlement to service connection for tremors.
2. Entitlement to service connection for left ear hearing loss.
3. Entitlement to service connection for tinnitus.
4. Whether new and material evidence has been received to reopen the Veteran's claim of service connection for a right knee disability.
REPRESENTATION
Veteran represented by: Veterans of Foreign Wars of the United States
WITNESS AT HEARING ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
Megan C. Kral, Associate Counsel
INTRODUCTION
The Veteran had active duty service from July 1964 to June 1968 and November 1990 to March 1991. The Veteran also had service in the Arizona Army National Guard, during which he had a period of active duty for training (ACDUTRA) from March 1996 to July 1996.
The issues of service connection for left ear hearing loss and tinnitus are before the Board of Veterans' Appeals (Board) on appeal from July 2010 and November 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The issue of service connection for tremors is before the Board on appeal from a July 2010 rating decision by the Phoenix RO.
In April 2013, a videoconference hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran's claims file.
The Board notes that the Veteran's appeal for hearing loss and tinnitus have been characterized and developed as claims to reopen the previous denials. However, under 38 C.F.R. § 3.156(c)(1), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. An award based in whole or in part on these additional service department records is effective on the date entitlement arose or the date VA received the previously denied claim, whichever is later. 38 C.F.R. § 3.145(c)(3). However, the claim will not be reconsidered under 3.156(c) if the service records associated with the file subsequent to the initial rating decision could not have been obtained when VA first decided the claim, either because they did not exist at the time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2).
In this case, at the time of the October 2007 rating decision, it was determined by a formal finding of unavailability that the Veteran's service department records (including his National Guard records) were unavailable. However, in February 2012, the Veteran has submitted copies of select service department records to include a January 1980 Report of Medical History for enlistment, a June 1989 Report of Medical History, and a February 1997 Report of Medical History. These service department records were not previously considered in the October 2007 decision. These records are pertinent because they include relevant clinical examinations of the Veteran's hearing loss disabilities during his service. Given the submission of these new service department records, the Veteran's service connection claims must be reconsidered without regard to the previous final denial. 38 C.F.R. § 3.156(c).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The Veteran contends that his left ear hearing loss and tinnitus are the result of an incident with a rifle that misfired near his head in January 1980. The Veteran's records show that in January 1980 he enlisted in the Arizona Army National Guard. As such, the threshold issue that needs to be addressed is whether (and to what extent) his service in the Arizona Army National Guard is qualifying service for VA benefits. See 38 U.S.C.A. §§ 101(24); 1110, 1131, 1521; 38 C.F.R. § 3.6. Certification of any federalized periods of such service is necessary.
Additionally, the Veteran must be afforded another VA audiological examination. On June 2010 examination, the examiner noted that because there were no service treatment records in the file, it was not possible to determine if the Veteran's hearing loss or tinnitus were related to in-service noise exposure without resorting to mere speculation. Since this examination, the Veteran has submitted select service records which note decreased hearing in his left ear. Based on the foregoing, the Board finds another examination and a clarifying medical opinion are necessary to determine the likely etiology of any hearing loss and tinnitus disabilities.
Further, the most recent VA treatment records associated with the Veteran's claims file are dated in September 2012. Any records of VA treatment for the disabilities at issue since then would constitute pertinent evidence, constructively of record, that is outstanding. Consequently, updated VA treatment records must be sought.
With regard to the Veteran's claim of service connection for tremors, the Veteran contends his tremors are the result of Agent Orange exposure and that he has been told they are a variant of Parkinson's disease. The Veteran served in Vietnam from May 1967 to June 1968. Agent Orange exposure is presumed. A clarifying medical opinion is needed to determine the nature of his tremors, specifically to determine whether the Veteran has variant of Parkinson's disease as he alleges. The medical evidence of record is unclear. A July 2009 treatment record indicated he was being treated as if he had a variant of Parkinson's disease. However, more recent treatment records limit the diagnosis to essential tremors. Once a diagnosis is provided, an opinion, with supporting rationale, is also needed on the matter of whether it is at least as likely as not (a probability of at least 50 percent) that the Veteran's tremors are related to his service, to include presumed Agent Orange exposure. 38 C.F.R. § 3.159; McLendon v. Nicholson, 20 Vet. App. 79 (2006).
Finally, the Board notes that an October 2012 rating decision denied reopening the Veteran's claim of service connection for a right knee disability. The Veteran subsequently submitted a notice of disagreement in January 2013. A statement of the case has not been issued on this matter. Where a statement of the case has not been provided following the timely filing of a notice of disagreement, a remand, not a referral is required by the Board. Manlincon v. West, 12 Vet. App. 238 (1999). This matter must, accordingly, be remanded for issuance of a statement of the case.
Accordingly, the case is REMANDED for the following action:
1. Issue a statement of the case addressing the issue of whether new and material evidence has been received to reopen the Veteran's claim of service connection for a right knee disability. The Veteran and his representative should be afforded the appropriate period of time to respond. This matter should be returned to the Board only if the Veteran or his representative submits a timely substantive appeal.
2. Request the Veteran submit copies of any and all service department records, from all periods of service, that he may have in his possession.
Then arrange for verification of any (and all) periods of federalized (and qualifying for VA benefits) service the Veteran may have had as a member of the National Guard (to include full time service under 38 U.S.C.A. §§ 316, 502, 503, 504, or 505). The Veteran must assist in this matter by identifying any (and all) alleged periods of such service. Then ask the appropriate service department to verify (as to each such period of service identified) whether of not it indeed was federalized (and qualifying service). Specific periods for which verification should be sought should include from January 1980 to September 1998.
It is imperative that this development be completed before further development in these matters is sought. Then prepare for the record a determination as to what alleged periods of National Guard service were indeed in federalized (and qualifying for VA benefits) status.
3. Secure and associate with the record updated records of all VA treatment the Veteran has received for his hearing loss and tinnitus disabilities since September 2012.
4. Thereafter, the Veteran should be scheduled for a VA audiological examination. It is imperative that the claims file be made available to the examiner for review in connection with the examination. An audiogram must be performed and pure tone thresholds and speech recognition scores must be reported. After reviewing the claims file, to include all service medical records, and examining the Veteran, the examiner should respond to the following:
a. What is the most likely etiology for the Veteran's left ear hearing loss? Specifically, is it at least as likely as not (a 50% or better probability) that it is related to the Veteran's exposure to noise trauma during a period of federalized military service, active duty service, or is otherwise related to such service?
b. What is the most likely etiology for the Veteran's tinnitus? Specifically, is it at least as likely as not (a 50% or better probability) that it is related to the Veteran's exposure to noise trauma during a period of federalized military service, active duty service, or is otherwise related to such service?
The examiner must provide an explanation of rationale for all opinions provided.
5. Contact the Veteran and request he obtain from Dr. Abraham Lieberman a statement of rationale to support his opinion that the Veteran's tremors were more than likely related to Agent Orange exposure, as stated in the April and May 2013 letters. If Dr. Lieberman is not able to provide a rationale, he should explain why.
6. After the above development has been completed, a medical opinion from a neurologist, with examination only if deemed necessary, should be provided which addresses the likely etiology of the Veteran's tremors. It is imperative that the claims file be made available to the examiner for review in connection with the examination. After reviewing the claims file, to include all service medical records and post-service treatment records, the examiner should respond to the following:
a. Please provide an opinion as to the nature of the Veteran's tremors, specifically, does he have Parkinson's disease or a variant of Parkinson's disease?
b. Please provide an opinion whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran's tremors are casually related to the Veteran's active duty service, to include exposure to Agent Orange.
The examiner must provide an explanation of rationale for all opinions provided.
7. The RO should then review the record and readjudicate the claims. If any claim remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review.
The Veteran has the right to submit additional evidence and argument on matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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M.C. GRAHAM
Acting Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2013).